This article is adapted from Tad Crawford’s recently published book, The Graphic Design Business Book,
published by Allworth Press of New York (www.allworth.com). Invasion of privacy is not the only risk you and your clients face when bringing images before the public. Both private individuals and the public are protected by other laws drawn from a variety of sources. This chapter will elaborate on what you must know about in addition to privacy so you can pursue your professional activities without violating any laws or legal rights.
Right of Publicity The right of publicity is possessed by athletes, entertainers, and other people who seek to create a value in their name or likeness by achieving celebrity status. It is different from the right of privacy, which protects peace of mind and the right to live free of unwanted intrusions. The right of publicity is a property right based on the value inherent in a celebrity’s name or likeness. The right of privacy protects everyone. The right of publicity protects only those who have succeeded in becoming celebrities. The right of privacy cannot be assigned. The right of publicity, like other property rights, can be assigned. The right of privacy ends when the person whose privacy was invaded dies. The right of publicity can survive the celebrity’s death and benefit his or her heirs or assignees.
If you use an image of a baseball player for a company that manufactures baseball cards, the company is going to need a license from the player in order to use the likeness on its baseball cards. Or if a company wants to use a likeness of a football player in a game for children, a license from the player will be needed to avoid having the game violate his right of publicity. In one interesting case, a baseball player gave a license to a sporting goods company and its assignees to use his name, facsimile signature, initials, portrait, or nickname in the sale of its gloves, baseballs, and so on. The sporting goods company sold baseballs to a meat company for use in a promotion with meats. They also gave the meat company the right to use the player’s name and likeness in connection with the promotion. The player sued to prevent the meat company from using his name and likeness in this way, but he lost because he had assigned his right of publicity without limiting what types of companies it could be assigned to.
The right of publicity protects against commercial exploitation. It cannot prevent the reporting of events that are newsworthy or in the public interest. For a guide to what is newsworthy or in the public interest, you can refer back to the many examples given in the chapter on privacy.
The courts have said that the right of publicity will survive a celebrity only if that person exploits the right while alive. This means that celebrities must take steps to exercise these rights—for example, by means of contracts to use their name or likeness for endorsements or on products—if assignees or heirs are to be able to assert the right after the celebrity’s death. If a celebrity’s right of publicity would be violated by the commercial use of a likeness, a license should be obtained from the celebrity.
Celebrity Rights Laws In 1984, California used the right of publicity as the basis to enact a celebrity rights law. A number of other states have followed California’s lead. The basic approach of these laws is to protect the publicity rights of deceased people for up to fifty years after their death. This applies to people whose name, voice, signature, or likeness had commercial value at the time of death, whether or not that commercial value had been exploited during life. Prohibited uses cover commercial exploitation to sell merchandise or services, including advertising. Typical exemptions from the coverage of the law would include works in the public interest, material of political or newsworthy value, and single and original works of fine art.
These celebrity rights laws impinge on the freedom of expression guaranteed to artists by the First Amendment. Since creative works are likely to be disseminated nationally, it may be that the most restrictive celebrity rights law will govern whether the designer must seek permission from the people to whom the decedent has transferred the celebrity rights or, if no transfer has been made, the heirs of the decedent.
Libel Libel is communicating to the public a false statement about someone, which damages the person’s reputation. Computer-manipulated photographs can create a false image and damage someone’s reputation. So can errors in the lab.
The First Amendment cuts into the individual’s protection against libel. In a libel suit brought by a public official or public figure over a report that is newsworthy, the person suing must show that the false statement was made with reckless disregard for whether it was true or false or with actual knowledge that it was false. This is a very difficult standard to meet. The question of who is a public figure, already discussed under invasion of privacy, becomes important in libel, because of the higher standard of proof required. For private individuals who become involved in matters of public interest, the states may set a lower standard. For example, in order to recover, the private individual might have to show only negligence in the publication of the false material. For private individuals suing for libel over a matter not in the public interest, proof that the defendant knew the statement was false would be necessary only to get the extra damages, called punitive damages.
Libel is in general of less concern to designers than to writers. However, if you fear that use of an image may libel someone, you should consult an attorney and consider obtaining a release from the person who might bring the libel suit.